The opinion of the court was delivered by: JAMES B. MORAN
In Ramos v. State of Illinois, No. 90 C 7211, a class comprised of all citizens and qualified voters in Chicago whose right to vote has been or will continue to be abridged by the existing aldermanic election/redistricting schedule, brought an action for injunctive and declaratory relief. That action first sought to delay the spring 1991 aldermanic elections until after the City redistricted on the basis of the 1990 census figures. Unsuccessful in that effort, see Memorandum and Order of February 8, 1991, the Ramos plaintiffs filed a second amended complaint. They now seek a new map based on the 1990 census figures, and a special aldermanic election by at least the scheduled March 1992 general elections, based on the new map. In PACI v. Daley, No. 90 C 7447, a class comprised of all African-American residents, citizens and voters of Chicago, seek essentially the same relief as the Ramos plaintiffs now seek. In light of that action the Ramos plaintiffs have now proposed that their class be all non-African-American citizens and qualified voters in Chicago whose rights to vote have been or will continue to be abridged by the existing aldermanic election/redistricting schedule. The plaintiffs in both actions have moved for class certification.
The City and State defendants, and the defendant intervenors, have all opposed the Ramos class as originally proposed. The City defendants oppose the PACI class as well. The thrust of the opposition is that the Ramos class (City, State and intervenor defendants), and the PACI class (City), are too broadly defined to meet the Rule 23(b)(2) requirements of commonality and typicality, and that, in Ramos at least, the plaintiffs will not be able to fairly and adequately protect the interests of the class because the proposed class has within it antagonistic and conflicting interests. Those arguments are impacted by the Ramos plaintiffs' proposed new class definition, and we turn to the present posture of the cases in those circumstances.
The Ramos plaintiffs complain that the present election schedule violates the rights of Hispanic voters because a substantial increase in the number of Hispanic citizens in Chicago will not be recognized until the 1995 elections, despite the availability of new census data in 1991 (Counts I and V), and that same delay in recognizing population shifts within the City violates the right of each citizen to have his or her vote have a weight equal to the weight of the vote of others (Counts II and III). The PACI plaintiffs, in complaining of population malapportionment, focus on its impact upon African-American voting strength, while at the same time claiming violations of equal voting rights generally.
Plaintiffs point out, and defendants can hardly disagree, that a class action under Rule 23(b)(2) is the typical vehicle for raising remap and election issues of this nature, see, e.g., Ketchum v. Byrne, 740 F.2d 1398 (7th Cir.), cert. denied, 471 U.S. 1135, 86 L. Ed. 2d 692, 53 U.S.L.W. 3852, 105 S. Ct. 2673 (1985). The issue is whether claims common to the class will be raised and vigorously prosecuted by their claimed representatives. That raises concerns about levels of generality. In a democratic society one would hope that all citizens would be equally concerned about fair representation and equal voting power. There is a reflection of that in the diversity of the Ramos plaintiffs. Clearly, however, a major thrust of the Ramos complaint is that Hispanic voting power has been diluted and that Hispanics are entitled to more representation. That increased representation necessarily would come at the expense of some other group, which may be African-Americans who, in PACI, are claiming that demographic trends have diluted their voting strength. We see that as the only real antagonism in the originally proposed Ramos class.
We could carry the levels of generality further. Voters of whatever derivation who live in over-represented wards might prefer to have an unequal voting weight system continue. Some Hispanics and African-Americans may, for any number of reasons, feel they benefit from the continuation of the present system. Perhaps we should have a class of all citizens who believe their rights are abridged by population imbalances in the present map, and separate classes of Hispanic citizens and African-American citizens who believe their ethnic or racial representation is diluted by the present map. We do not, after all, have to individually identify the class members in a Rule 23(b)(2) class -- and the above is a basic generic description of those who are complaining here. We think, though, that the classes presently proposed will serve the purpose, see Williams v. State Bd. of Elections, 696 F.Supp. 1559 (N.D. Ill. 1988), and we certify the proposed classes.
All defendants have filed a motion to dismiss, and those we now grant. We have awaited developments subsequent to the February 8, 1991 Memorandum and Order, but we see no reason to wait further, and we believe the plaintiffs are entitled to pursue an appeal of what is wholly a legal issue.
The earlier opinion described the Illinois statutory scheme as it applied inn to December 1, 1991. Since that opinion the final census figures have become available and, while they apparently remain the subject of litigation, they provide, until and unless changed, the appropriate bases for redistricting. McNeil v. Springfield Park District, 851 F.2d 937, 946 (7th Cir.), cert. denied, 490 U.S. 1031, 104 L. Ed. 2d 204, 109 S. Ct. 1769 (1989). The Chicago City Council has sought to agree on a new ward map prior to the December 1, 1991 statutory deadline, and the proposals reported in the newspapers (judges do read them on occasion) indicate that the recent census figures support, or at least may support, substantially increased Hispanic aldermanic representation and some increase in African-American representation.
The City Council's efforts have failed. That means that further Illinois statutory provisions come into play. If the City Council fails to redistrict, then any ten aldermen may petition to have a proposed redistricting ordinance placed on the ballot for referendum approval at the next election (which here means March 20, 1992). Ill.Rev.Stat. ch. 24, para. 21-40. There could be as many as ten proposed maps on the ballot. The map favored by the most voters or, if only one ordinance is proposed and it is favored by a majority of the voters, thereafter becomes law. Ill.Rev.Stat. ch. 24, para. 21-42.
That statutory scheme, adopted long ago and now impacted by a delay in the release of official census figures, results once every 20 years in the election of aldermen shortly before final census figures are released -- which aldermen shall serve to the fifth year after the census data was gathered. A new map may not be adopted until almost a year after census data becomes final, if this adoption must be by referendum, and too late for any special election of aldermen in the next general election, although the statutory scheme provides a means for adoption of a new map by referendum at that election if the City Council fails to redistrict. Thus there is a means to redistrict well prior to the next scheduled aldermanic election, even if the legislative body fails to act. Does that statutory scheme violate the Voting Rights Act or constitutional norms? We think not.
Plaintiffs do not claim that the statutory scheme was adopted for a discriminatory purpose, nor could they. It has been, substantially, in place for almost 50 years. The most they can claim is that an effort toward the end of the 1990 General Assembly session to change that system failed to pass. That does not make this an intentional discrimination case. The Ramos plaintiffs, but not the PACI plaintiffs, do allege intentional discrimination, but they do so in a circular fashion: because defendants failed to change an unconstitutional system they intend to perpetuate it. The thrust of plaintiffs' claims has to be and is that a system that locks into place elected officials for four years, shortly before a redistricting on the basis of new census data becomes possible, cannot pass muster. We disagree.
Reapportionment following a decennial census is the constitutional norm, Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964). reh'g denied, 379 U.S. 870 1969, 13 L. Ed. 2d 76, 85 S. Ct. 12 ), and we are not aware of anything that suggests that Congress intended to change that standard for the purposes of the Voting Rights Act. Indeed, that standard was followed in Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir.), cert. ...